This week marks the latest development in the Cox Communications, Inc., et al. v. Sony Music Entertainment case, with amicus briefs filed by eleven Sony supporters. These briefs argue generally that Cox should be held contributorily liable for copyright infringement by its users because its termination policy for alleged repeat infringers was inadequate. They generally call for a broad scope of ISP liability as a way to ease the burden of copyright enforcement online.
However, as Re:Create, EFF, ALA and ARL argued in an amicus brief in support of Cox in September, ISPs shouldn’t be held responsible for their customers’ infringing activities. The brief explained that copyright law doesn’t clearly define when someone can be liable for others’ actions, but using rules from patent law provides an approach that properly balances the interests of copyright holders with those of technology providers and their users. Moreover, holding ISPs liable could lead to innocent people losing internet access based on unfounded allegations, which would unfairly harm families, schools, and communities.
Below are additional resources on this issue and why Re:Create and its members support Cox in this landmark case, which could have profound effects on the internet and other technology services that Americans rely on every day to teach, learn, work, and connect:
- Sony Submits Brief in Cox v. Sony
- Everything You Need to Know About Cox v. Sony & What People Are Saying
- Brief of Amici Curiae Electronic Frontier Foundation, American Library Association, The Association of Research Libraries, and Re:Create in Support of Petitioners and Reversal
- Public Knowledge: Broadband Providers Are Not Copyright Cops: Why the Sony v. Cox Case Threatens Internet Users
- ARL: Library Copyright Alliance Asks Court to Reconsider Its Finding on Contributory Infringement in Sony v. Cox
- Comments on Cox Communications’ Merits Brief
To help sift through the wall of text in this intimidating docket, we’ve provided AI summaries (with a little human supervision and editing!) of today’s briefs in support of Sony below:
Brief of Amicus Curiae The Motion Picture Association, Inc. In Support of Respondents
Summary: Characterizing the internet as a potential “haven for mass piracy,” the MPA alleges that Cox seeks to narrow the standard for secondary liability to require a defendant’s intent to induce or encourage infringement, rather than what they say is the established rule of knowingly facilitating or materially contributing to it, without regard to intent. The MPA argues this alleged change would eliminate the “system of cooperation” between service providers and copyright owners. MPA equivocates between secondary liability rules and the DMCA’s “safe harbor” provisions despite Congress’s own disclaimer of any intent to influence secondary liability doctrines by creating the Section 512 safe harbors. Nevertheless, MPA says broad secondary liability rules are necessary alongside the Section 512 regime to give service providers an incentive to address repeat infringers. The MPA contends that Cox, having failed to implement a meaningful policy to address repeat infringers and thus forfeiting the DMCA safe harbor, should be held secondarily liable.
Summary: The brief centers on the music industry’s long reliance on secondary liability—the legal principle that holds intermediaries responsible for infringement enabled on their platform—as a critical enforcement tool dating back to early 20th-century “dance-hall” cases. The brief claims that the doctrine is essential because internet service providers (ISPs) like Cox are the “gatekeepers” who allegedly know the identity of the direct infringers, making them a more convenient target for copyright owners unwilling to pursue “countless anonymous individuals” engaged in actual infringement.
The music industry amici contend that the law has consistently applied secondary liability to entities that knowingly provide critical support for infringement, regardless of whether that entity is a physical venue or an ISP. Like the MPA, the music industry brief emphasizes that Cox disqualified itself from the DMCA’s safe harbor by refusing to adopt reasonable anti-piracy measures and by engaging in a “deliberate and reckless campaign” to ignore copyright law in the interest of preserving subscription revenue—actions that they say strongly support the jury’s finding of willful infringement.
Amicus brief of Bruce E. Boyden submitted.
Summary: Professor Boyden argues that the Supreme Court should affirm Cox’s liability by clarifying that contributory copyright infringement should be treated like civil aiding and abetting under tort law, rather than looking to patent law doctrines as the Supreme Court has done in past cases.
He asserts that this requires only knowledge of a user’s pattern of infringement (provided by reliable notices), not intent. Furthermore, he contends that continuing to provide internet service to known repeat infringers constitutes the necessary “substantial assistance” (or “material contribution”) needed for liability. Boyden concludes the jury had sufficient evidence to find Cox liable and the Court should affirm the ruling.
Amicus brief of The Copyright Alliance submitted.
Summary: The Copyright Alliance, a trade group that represents the major corporate copyright holders in the publishing, film, and music industries as well as individual creators, emphasizes the cultural and economic contributions of those industries and asserts that strong copyright enforcement mechanisms are necessary to ensure these industries can continue to thrive. Like the MPA, the Alliance asserts that a broad interpretation of contributory infringement is essential for combating digital piracy because suing individual infringers is impracticable. Also like the MPA, the Copyright Alliance argues that a broad contributory liability standard requiring only knowledge and material contribution is rooted in common law, was incorporated by Congress in the 1976 Copyright Act, and was affirmed by the Digital Millennium Copyright Act (DMCA), which provides safe harbor only if ISPs adopt and enforce a policy against repeat infringers. By failing to adhere to its own repeat infringer policy, Cox both forfeited the DMCA’s protection and was rightfully found liable for willfully facilitating massive infringement.
Summary: The brief on behalf of several large authors groups echoes the arguments of other amici that the doctrine of contributory infringement is vital for effective copyright enforcement because suing millions of anonymous online infringers directly is a “practical impossibility”. The brief contends that the jury properly found “material contribution” because Cox continued to provide its service to specific users with knowledge that infringement was “substantially certain” to recur, and its deliberate failure to terminate those accounts—driven by a desire to protect revenue—constitutes the “affirmative steps” and “culpable expression” required for liability. The brief also attempts to distinguish this case from criminal cases cited by Cox and its amici, including the Supreme Court’s recent decision in Twitter, Inc. v. Taamneh.
Amicus brief of The Association of Amicus Counsel submitted.
Summary: The somewhat mysterious and generically-named Association of Amicus Counsel seems to have entered the case primarily to prevent the outcome of this case from having any effect on what the group sees as the correct and well-functioning rules of secondary liability in patent law. Notwithstanding the Supreme Court’s endorsement of patent law rules of secondary liability as good models for copyright jurisprudence, the brief argues that patent and copyright differ so significantly that if the Supreme Court were to endorse Cox’s proposed interpretation of the proper scope of contributory copyright infringement, it should nevertheless disclaim any intent to announce a similar rule for contributory patent infringement.
Amicus brief of National Center on Sexual Exploitation submitted.
Summary: In a brief funded in part by the RIAA, NCOSE argues that secondary liability is context-dependent, informed by distinct common law principles, federal statutes, and policies for different wrongs like copyright, terrorism, and child sexual exploitation (CSAM). The brief contends that transplanting what they characterize as a blanket “no-liability-for-inaction” rule from the terrorism context (Twitter, Inc. v. Taamneh) into this copyright case would be “inapt and critically impair efforts to protect children”, as it could incentivize platforms to “sit on their hands while knowingly profiting from criminal child sexual abuse material” despite having the authority to stop it. NCOSE asked the Court to affirm the judgment for Sony and to make clear that its ruling on the scope of contributory infringement is specific to the copyright context and does not extend to, or create general rules that would allegedly immunize platforms from liability for, the sexual exploitation of children.
Summary: The amici argue that the Fourth Circuit correctly applied the traditional “material contribution” standard—which requires knowledge of infringement and a material contribution to it—and contend that the Petitioners’ attempt to confine all contributory liability solely to the narrow “inducement” rule from MGM Studios Inc. v. Grokster, Ltd. is flawed, as Grokster intended to supplement, not supplant, preexisting common law principles. The brief warns that adopting the Petitioners’ unduly narrow standard would “spell disaster for the music community” by eliminating the only feasible means of challenging mass online infringement, giving general-purpose ISPs total immunity, and destroying the incentives for ISPs to cooperate with copyright owners as allegedly intended by the DMCA. The amici conclude that the traditional material contribution standard is necessary and appropriate to address the scourge of online music piracy and should be affirmed.
Amicus brief of IP Law Scholars submitted.
Summary: Parting ways with the two briefs filed by IP scholars who sided with Cox (and Prof. Charles Duan, whose brief was for neither party but supported a rule that would vindicate Cox), this group of scholarly amici argue that the “traditional Gershwin standard”—which covers one who “knowingly… materially contributes” to infringement—was the intended legal backdrop for both the 1976 Copyright Act and the DMCA. Adopting the Petitioners’ narrow, tort-based theories would “eliminate the protections for copyright owners under Section 512 and render the statute a dead letter” by removing the incentive for Internet ISPs to comply with the DMCA’s repeat infringer termination policies. The brief dismisses policy arguments about the importance of internet access as irrelevant, noting that Congress explicitly contemplated the termination of service for repeat infringers in the DMCA, and alleged that Cox’s conduct “demonstrated a willful and reckless disregard” for copyright holders’ rights driven by profit maximization.
Summary: This brief on behalf of amici who were formerly federal officers, many of whom are currently employed by content companies and trade associations (including the Association of American Publishers, the Motion Picture Association, and the NewsMedia Alliance) contend that Congress deliberately relied on a “material contribution” standard in crafting the DMCA to incentivize service providers to cooperate and curb piracy, and that Cox’s proposed new standard—requiring a showing of “purposeful, culpable conduct intended to further infringement”—would eliminate this incentive, effectively “eviscerate[ing]” the ability of copyright owners to address online infringement. The brief further alleges that the Supreme Court’s articulation of the “inducement rule” in Grokster did not abandon the material contribution standard, nor is the “quasi-criminal aiding and abetting” standard from Twitter v. Taamneh appropriate in the civil copyright context.
Amicus brief of Association of American Publishers, Inc. & News/Media Alliance submitted.
Summary: The brief alleges that the “material contribution” standard is a long-established principle of common-law tort, rather than a novel theory, and claims that it has been consistently applied across contexts ranging from physical marketplaces to modern online service providers (OSPs). According to the brief, this doctrine—requiring both knowledge of infringing activity and substantial assistance in furthering it—supposedly forms the foundation of the DMCA’s notice-and-takedown framework. The authors contend that Congress designed the DMCA to provide a conditional safe harbor from secondary liability only for OSPs that act promptly to remove infringing content once notified. They warn that narrowing or rejecting liability for contributory infringement based on material contribution would, in their view, undermine the incentives for OSPs to rely on the DMCA’s safe harbor, disrupt Congress’s intended balance, and allegedly weaken rightsholders’ ability to combat online piracy.
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About Re:Create: Re:Create is a coalition comprised of a broad membership of think tanks, advocacy organizations, libraries, technology companies – large and small – that serves as the leading coalition united in the fight for a balanced copyright system that is pro-innovation, pro-creator, and pro-consumer. Not every member of the Re:Create Coalition necessarily agrees on every issue, but the views we express represent the consensus among the bulk of our membership.